Les Rosan: I am not a terrorist, despite what my government may believe

Friday, June 21, 2013

The Constitution of the United States is a dynamic living document serving as the foundational bedrock of our democracy. Nothing is perfect, however, and as is the case with most negotiated contracts, our Constitution is subject to continual judicial review and legal interpretation. It has weathered it all and after 224 years it remains the supreme law of the land.

The tragic Sandy Hook Elementary School shooting in Newtown, Conn., last December focused a great deal of attention on the Constitution and specifically on the Second Amendment found in the Bill of Rights which states: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” The tragedy in Newtown resulted in a flurry of proposed legislation including enhanced background checks and additional restrictions on the possession of certain firearms and high-capacity ammunition magazines. Even though Newtown should have been a catalyst for action, a reasoned, national discussion on the causative factors of gun violence never saw the light of day. The unimaginable slaughter of 20 first-graders in Newtown was soon overshadowed by a vitriolic debate over the interpretation of the Second Amendment. The constitutional purists were absolute in their belief that there should be no additional infringements on a citizen’s right to keep and bear arms. The purists also were quick to affirm that the concept of liberty was more important than security and with the influx of special interest money into the scrum; positions were further polarized on all sides. For the moment we have moved on but, at least temporarily, we have sacrificed the national discussion necessary to address this country’s fascination with guns and violence.

Newtown may have forced a national critique of the Second Amendment, but someone named Edward Snowden has recently forced public scrutiny of government conduct and how that conduct comports to the Constitution’s Fourth Amendment, which states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Edward Snowden was a former Central Intelligence Agency (CIA) employee who most recently worked for Booz Allen Hamilton, a defense contractor for the National Security Agency (NSA). Even though Snowden had only worked for Booz Allen Hamilton for three months he had a security clearance authorizing him to access classified governmental information. Snowden, a high school dropout, was making $200,000 per year to review electronic metadata that had been forwarded to his employer by the National Security Agency. Snowden’s tenure at Booz Allen Hamilton was brief and it terminated when he fled to Hong Kong from his home in Hawaii. After his departure from this country, Snowden spoke to a British newspaper, The Guardian, about just what he had been doing for Booz Allen Hamilton and the NSA. Snowden revealed that the United States government had been seizing electronic metadata from a number of cell phone and internet providers under the guise of national security. This information was seized with legal search warrants which had been issued by a secret court established in 1978 under the authority of the Foreign Intelligence Surveillance Act. (FISA). I have to admit that I am ambivalent about Snowden’s revelation because I really don’t have anything to hide. I am not a terrorist but because of my ambivalence, I fluctuate from the position of grudging acceptance to one of anger and distrust.

Defining the term “probable cause” as found in the Fourth Amendment, is a lot like someone trying to describe the taste of salt. It may be difficult to articulate but almost everyone knows what the term means. Black’s Law Dictionary describes “probable cause” as “a set of probabilities grounded in the factual and practical considerations which govern the decisions of reasonable and prudent persons and is more than mere suspicion but less than the quantum of evidence required for conviction.”

I am not a terrorist but in the spirit of openness and transparency I will admit to occasionally releasing my Golden Retriever from his legallyrequired leash. I will further acknowledge that I sometimes even set my cruise control a couple of miles per hour over the speed limit. Those transgressions, as egregious as they may be to some do not provide a basis for probable cause that I have been plotting terror attacks. My government through the use of overlybroad and questionable search warrants knows the origin, destination, time, date and duration of every cell phone call I have made. They know yours, too. That should be disconcerting to anyone believing they have Fourth Amendment protections from unreasonable governmental intrusions into our private affairs.

A balance needs to be struck between national security and our basic constitutional rights. I worked in law enforcement long enough to learn that a search warrant was “not intended to be issued in support of a fishing expedition.” The United States government has not learned that lesson and has cast a very large net in their effort to deter terrorism. They may have even caught a few fish but how many citizens had their constitutional rights trampled in the process? We are a nation of laws, and the Constitution is still the supreme law of the land. It is time to design a better net.